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For that purpose, nationals of Member States have in particular the right, which they derive directly from Articles 48 and 52 of the Treaty, to enter and reside in the territory of other Member States in order to pursue an economic activity there as envisaged by those provisions. A national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed person in the territory of another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, his conditions were not at least equivalent to those which he would enjoy under Community law in the territory of another Member State.
He would in particular be deterred from so doing if his spouse and children were not also permitted to enter and reside in the territory of that State under conditions at least equivalent to those granted by Community law in the territory of another Member State.
The fact that a national of a Member State enters and resides in the territory of that State by virtue of the rights attendant upon his nationality, without its being necessary for him to rely on his rights under Articles 48 and 52 of the Treaty, does not preclude him from relying on the latter rights when he takes up residence again in that Member State. The spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered or resided in the territory of another Member State.
Due, President, R. Joliet, F. Schockweiler, F. Kapteyn Presidents of Chambers , G. Mancini, C. Kakouris, J. Moitinho de Almeida, G. Zuleeg, J. Murray and D. Edward, Judges, Advocate General: G. Tesauro, Registrar: H. Clough and Co.
At the end of they returned to the United Kingdom in order to open a business. In July a decree nisi of divorce was pronounced against him in proceedings brought by his wife.
Because of that decree the British authorities cut short his leave to remain and refused to grant him indefinite leave to remain as the spouse of a British citizen. After that date he remained in the United Kingdom without leave. Moreover, although the marriage was dissolved by the decree absolute of divorce delivered in , that is not relevant to the question referred for a preliminary ruling, which concerns the basis of the right of residence of the person concerned during the period before the date of that decree.
In their view he must be treated in the same manner, in accordance with the prohibition of discrimination laid down in Article 7 of the Treaty, and he may therefore rely on Article 52 of the Treaty, particularly in relation to the right of residence of his spouse when the latter is not a national of a Member State. The United Kingdom also argues that the application of Community law to a national who returns to establish himself in his country of origin has paradoxical consequences, since Community law would inter alia allow him to be deported from that country, and maintains that to grant a right of residence to the spouse increases the risk of fraud associated with sham marriages.
In particular, as is provided, moreover, by Article 3 of the Fourth Protocol to the European Convention on Human Rights, a State may not expel one of its own nationals or deny him entry to its territory. These rights cannot be fully effective if such a person may be deterred from exercising them by obstacles raised in his or her country of origin to the entry and residence of his or her spouse.
Accordingly, when a Community national who has availed himself or herself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State.
Nevertheless, Articles 48 and 52 of the Treaty do not prevent Member States from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law.
The spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in the territory of another Member State. Decision on costs Costs 26 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
A spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in another Member State.
Surender Pal Singh
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